What if Congress grants the State Dept the Suspension Without Pay (SWOP) hammer?

Posted: 1:44  pm EDT
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According to the Foreign Affairs Manual, the Act of August 26, 1950 (64 Stat. 476), codified at 5 U.S.C. 7532, “confers upon the Secretary of State the authority, in the Secretary’s absolute discretion, to suspend without pay any civilian officer or employee of the Department (including the Foreign Service of the United States) when deemed necessary in the interest of the national security (see 12 FAM 235.2).”

So when the Senate Foreign Relations Committee passed the Fiscal Year 2016 Department of State Operations Authorization and Embassy Security Act which contains a similar language on security clearance suspension without work and no pay for Foreign Service employees, we were wondering what’s up with that (see S.1635: DOS Operations Authorization and Embassy Security Act, Fiscal Year 2016 – Security Clearance).

Section 610 (2)(c)(1) of S.1635 says that in order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—

(A) the member’s security clearance is suspended; or

(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.

The new language indicates suspension without pay (SWOP) whenever the security clearance is suspended for whatever reason. Not just for national security reasons anymore, folks.

The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.

Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it.  An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:

In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.

We want to look at the numbers of suspension and revocation, unfortunately, this is something that is not publicly available from Diplomatic Security.  A source speaking on background put the numbers very low at less than 30 suspensions a year and of those probably less than 5 are revocations. Another source long familiar with this issue guesstimate the number as closer to 70-80 suspension per year, and the number of revocations probably at15-20 per year. We are unable to verify these numbers independently.  The higher numbers may be due to greater hiring, as well as to the use of “Scattered Castles,” a computer database that lists all prior security clearance determinations by other agencies which may prompt a suspension and re-investigation of the clearance.  But even if we take the higher numbers of 80 suspensions, that is still a small number compared to the total FS workforce.

A source not authorized to speak on this subject told us that the bulk of security clearance suspensions and revocations involve personal behavior issues ranging from alleged sexual misconduct to alcohol abuse, to failure to report on time a relationship that should be reported. Very few security clearance cases involve a matter that is criminal, so very few result in prosecution.

The question then becomes why? Why would Congress want this? And just as important, why does the State Department support this?

The long history of this section of the bill reportedly dates back to Condoleezza Rice’s term at the State Department. It was allegedly intended to create parity between Foreign Service (FS) and Civil Service (CS) employees.

State can indeed put CS employees on SWOP as soon as clearance is suspended, but the rules also gives CS employees appeal rights to the Merit Systems Protection Board (MSPB). We understand that MSPB records and procedures are public and that it is specifically granted authority to review security clearance cases. The FS employees do not have the same protection with the Foreign Service Grievance Board. The final review adjudicative body, the Security Appeals Panel, not part of FSGB, allegedly does not even keep records of its deliberative process or set precedent for future cases. Currently, the rules on the FAM says: “If the individual is represented by counsel or other representative, the representative does not have a right to have access to or to review any material. However, to the extent authorized by the individual and the Department, the representative may review material that the individual has access to pursuant to subsection (b) above if he or she is properly cleared.”

The numbers of suspension/revocation are low but Congress doesn’t have to talk about the numbers. The members can talk about getting rid of bad apples in the government, which is always popular. In doing so, Congress can look tough on security, tough on the State Department and tough on keeping tabs on government money.

This is not a good idea. If only a quarter of all suspensions end in revocation, isn’t the USG throwing money and lives away? In addition to our concern that this could be use by the State Department to shut-up dissenters or potential whistleblowers, we also have the following concerns:

  • Costs in hiring/training

The USG has a lengthy hiring process for FS employees and typically trains them before sending them to posts overseas. The cost of that investment does not come cheap. Members of the FS also go through language training and spends most of their careers in overseas assignments.The length of time to replace/train/deploy an FS employee is significantly longer than the time to replace a CS employee.

  • FS family logistics

FS members overseas with suspended clearance are normally sent home to a desk job that does not require a clearance or their expertise. Not all FS members have houses to come home to in the WashDC area. They’ll have to pull kids out of schools, and move their entire household. What happens to them in DC if the employee is without work and without pay under this proposal? A suspension in this case would technically be a firing as the FS employee will be forced to find an alternate job that pays. So what happens when the case is resolved without a revocation, will the employee be able to come back? Since the investigation ends when the employee leaves, there is no win here for the employee.

  • Prime targets of hostile intel service

FS employees spends most of their career overseas. By virtue of their positions, they are prime targets of any hostile intel service. They can be subject of a security investigation though no fault of their own.  This is even more concerning with the OPM hack purportedly conducted by a foreign government.  If true that a foreign government now has the personal details of over 20 million security clearance holders, including those in the State Department who used OPM’s e-Qip system, how does one even protect oneself from the potential misuse of that information that can lead to a clearance suspension?

What can you do?

As we have posted earlier, the State Authorization bill was offered as an amendment when the NDAA was debated in the Senate in June but it was not voted on when the NDAA passed on June 18 (That would be H.R. 1735 which passed 215 (71-25)  We understand that both chambers are now starting the process to bring the bill to conference in order to resolve differences.  The State Authorization bill, we are told, will not be part of those discussions.  In order for this to move forward, it will either need to be brought to the floor as a stand alone vote or Corker/Cardin could try again to attach it to another piece of legislation. Given that this is the first authorization bill passed by the SFRC in 5 years, and made it through the committee with bi-partisan support, we suspect that this might not be the end of this bill.

We’re hoping that employees’ fundamental rights and due process do not become casualties particularly in gaining concessions from Congress on the overseas comparability pay (CP) fight. That would be a terrible bargain.  Educate your elected representative on the consequences of this section of the bill. See that AFSA is tracking this matter and talking to Congress.

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US Embassy Yemen: Revocation of U.S. Passports, a Growing Trend?

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Back in August 2013, Yemen Post reported of “more than 20 known cases” of U.S. passports revoked by U.S. Embassy Sana’a in Yemen:

More than 20 known cases of Yemeni-Americans who have tried to renew their passports in Yemen have surfaced in the last four months. The Yemeni American News has learned that the usual scenario is that American citizens of Yemeni descent have had their passports taken away when they go to the American Embassy in Sana’a to either renew their passports or get a visa for an immediate relative. Not only is it common for the embassy to decline a passport renewal or disallow a visa but, in addition, citizens are having their passports confiscated.

Peter Van Buren previously blogged about the U.S. passport revocations at the U.S. Embassy in Sana’a, Yemen here and here. WaPo’s  In the Loop has a Jan.9  item about the rights groups’ warning to U.S. passports applicants visiting the embassy.

Here is what state.gov says about passport revocation:

Passport revocation may be effected when the person obtained the passport fraudulently, when the passport was issued in error, when the person’s certificate of naturalization was cancelled by a federal court, or when the person would not be entitled to a new passport under 22 C.F.R. §§ 51.60, 51.61, or 51.62.

The State Department revokes passports in accordance with Title 22 of the Code of Federal Regulations (CFR) sections 51.60-62, and 51.65. There are also several statutes under which passports may be revoked and that are incorporated into DOS’s regulations, including: 8 U.S.C. 1504 (the passport was illegally, fraudulently or erroneously obtained); 42 U.S.C. 652(k) (for non-payment of child support); 22 U.S.C. 2714 (for certain drug traffickers); 22 U.S.C. 2671(d)(3) (non-repayment of repatriation loan); and 22 U.S.C. 212a (adds authority to revoke passports of persons convicted of sex tourism). Via

You may click here for 22 CFR on the denial and restriction of passports.

There had been talks alleging “500 seized/revoked passport cases.” Our own inside source who is not authorized to speak about this matter tells us that “at least 100 passports were taken” so far in Sana’a.  We were told that most of the individuals concerned were naturalized U.S. citizens.  According to State Department rules which are not published online, individuals remain eligible for U.S. passports until their Certificate of Naturalizations are revoked.

Naturalization certificates are supposed to stand on its own and cannot be questioned.  If the State Department has negative information, it is supposed to send the information to DHS/USCIS for action. But unlike most other immigration proceedings that USCIS handles in an administrative setting, revocation of naturalization can only occur in federal court.

Here is what USCIS says on revocation of naturalization:

If a court revokes a person’s U.S. citizenship obtained through naturalization, the court enters an order revoking the persons naturalization and cancelling the person’s Certificate of Naturalization. In such cases, the person must surrender his or her Certificate of Naturalization. Once USCIS obtains the court’s order revoking citizenship and cancelling the certificate, USCIS updates its records, including electronic records, and notifies the Department of State of the person’s revocation of naturalization. 

So — if true that most of the revocation cases concerned naturalized Yemeni-Americans, is the US Embassy in Yemen performing passport revocations without prior action from the U.S. Citizenship and Immigration Service (USCIS)?  Is this a case of a new policy?  Or is this a case of a Consular Section running “wild” with “minimal supervision” an allegation made by a State Department insider to this blog?

We asked around for an official comment and could only get one from a State Department official speaking on background:

“This Department is aware of the reports concerning these passports, and the situation has been reviewed.  Regarding the Department’s policy for passport revocation, the Department may revoke a passport, regardless of location, for reasons set forth in federal law and in federal regulations.  U.S. passports are the property of the United States Government and upon revocation must be returned to the Department of State.  A passport bearer is notified of the revocation and the reasons for revocation and must surrender the passport.  Depending upon the circumstances, the bearer may be provided with a limited validity passport for a direct return to the United States.”

The State Department refused to confirm or deny the number of passport revocations to date.

In response to reports that the U.S. Embassy in Sanaa has been taking U.S. passports away from a large number of U.S. citizens in Yemen, civil rights and community organizations like the ACLU, ALC, AROC, CAIR and CLEAR have published a booklet to raise awareness about the constitutional rights of people whose passports have been taken away, or who are interviewed or “interrogated” at the U.S. Embassy in Sanaa.

Screen Shot 2014-01-04

Click on image to view the PDF document

A little more digging around indicates a few court cases involving the US Embassy in Sana’a.

Abdo Hizam v. Hillary Clinton

Plaintiff Abdo Hizam brought action against defendants Hillary Clinton, the United States Department of State, and the United States of America (collectively the “State Department”) seeking a judgment declaring that he is a citizen of the United States and an order compelling the defendants to re-issue his Consular Report of Birth Abroad for a Citizen of the United States (“CRBA”) and passport.

On April 18, 2011, the State Department informed Mr. Hizam by letter of its opinion that it had committed an error in calculating the physical presence requirement for his acquisition of citizenship at birth. Subsequently, the State Department informed Mr. Hizam that his CRBA had been canceled and his passport revoked and requested the return of those documents. On May 19, 2011, he complied.

The July 27 Order found that the State Department did not have the authority to revoke Mr. Hizam’s citizenship documents and ordered the return of Mr. Hizam’s CRBA. The State Department contended that absent a stay it will suffer irreparable injury because the July 27 Order undermines its “sole discretion” to withhold passports. The Court says that “being required to comply with a court order is insufficient in and of itself to constitute irreparable harm.” In September 2012, the Court ruled that the stay is denied on the condition that Mr. Hizam not seek derivative status for his family members until an appeal, if lodged, is resolved.” The appeal is ongoing on this case.

The Hizam case was covered by NYT in 2012 here. This case bears watching as no fraud is alleged here; instead, the CRBA was issued due to the error of the adjudicating officer.

 Nashwan Ahmed Qassem v. Holder et. al. | CIVIL DOCKET FOR CASE #: 6:13-cv-06041-DGL

Complaint for writ of mandamus & declaratory judgment against Department of State, Bureau of Consular Affairs, Consular General, US Embassy, Sana’a Yemen, and Chief, Immigrant Visa Branch, US Embassy, Sana’a Yemen, Eric Holder, The United States Department of Justice, filed by Nashwan Ahmed Qassem. In October 2013, the Clerk of the Court was directed to close the case by Hon. David G. Larimer.  This case reportedly involved Embassy Sana’as  revocation of a passport and was settled by issuing the passport.

All documents sealed except for order granting motion to withdraw.

Alarir et al v. Holder et al.|  CIVIL DOCKET FOR CASE #: 1:12-cv-07781-AKH

Complaint in the nature of mandamus against Gerald Michael Feierstein, Eric H. Holder, Janice L. Jacobs, Alejandro Mayorkas, Janet Napolitano, Hillary Rodham Clinton by Abdallah Alarir aka Aiyahs, Nasser A. On or about October 18, 2012, seeks order compelling Defendants to (a) issue an immigrant visa to plaintiff Abdallah Alarir and (b) issue United States passports and Consular Records of Birth Abroad to plaintiffs Alaa AJarir and Rawan Alarir.  After a sixth request for an extension, on 10/31/2013, the Clerk was directed to close the case by Judge Alvin K. Hellerstein. The case endorsement says “A suggestion of settlement having been made, this case is dismissed, subject to restoration by either party within 30 days on notice. All pending court dates are cancelled.”

The case was settled with issuance of an immigrant visa to Abdallah Alarir and United States passports and Consular Records of Birth Abroad to Alaa Alarir and Rawan Alarir according to the dismissal order dated November 2013.

Mousa v. United States of America et. al.| CIVIL DOCKET FOR CASE #: 3:13-cv-05958-BHS

COMPLAINT filed (sealed) on November 2013 against defendant(s) United States of America, U.S. Consulate for the Country of Yemen, David Doe, John Doe by Hashed Naji Mohamed Mousa, Fekriah Abdulwahab and minor children, A.H.M., B.H.M. As of 12/05/2013, this case reportedly involving the passport applications of minor children is ongoing. Some files are sealed.

Passport Applications Pending at Post

According to 7 FAM 1368 — “If the passport applicant does not have sufficient evidence to establish a claim to U.S. citizenship, post must provide the applicant with written notification that his/her application has been denied, but will be held by post for 90 days pending submission of additional evidence. If an applicant requests additional time to submit evidence within the 90 day period, posts may grant an additional 90 days or other reasonable period of time based upon the circumstances. In general, passport applications may not remain pending at a post for more than six months.”

If passport applications have been pending at post for six months or even longer (WaPo says that some cases are pending for two years), and American citizens had to get lawyers, and go to court to compel the embassy to decide on their cases, then there is something problematic with the process. Absent an official explanation from the CA Bureau, we can only speculate on what is going on here: 1) Is there is a new policy on passport applications/revocations that the State Department is using without appropriate announcement? 2)  Is there is a new policy on passport applications/revocation that State is using specific to Yemeni-American passport applications? 3) Are there Citizenship/Passport/Fraud staffing issues at Embassy Sana’a that impacts this trend? 4) Is the lengthy waiting time and backlog due to fraud overload at post?

Isolated Cases or a New Trend?

We could not locate any new guidance publicly available on U.S. passport revocations. Is there one available  that supersedes 7 FAM 1368?  If there is one, it would have been published in the Federal Register, not just the changes but the propose changes to the rules. There appears to be several proposals for information collection related to passport applications published on the Federal Register but nothing on passport revocations.

If true that over 100 passports were taken away, revoked or pending revocation, these are no longer isolated cases but  may now constitute a trend.  In 2010, a State/OIG report on Yemen includes this:

“The failed attempt by a Yemeni-trained Nigerian terrorist to blow up a Detroit-bound jet on Christmas Eve 2009 and the Yemeni links to the U.S. Army major who, in November 2009, allegedly killed 13 of his countrymen in Fort Hood, Texas, have raised the public consciousness of Yemen as a center for terrorism. This awareness has underscored the importance to homeland security of all consular activities. Issuing a passport or visa to a terrorist is a real risk, and Embassy Sanaa works hard to make sure that their product is free of fraud.”

But if that’s the basis for this “new” trend in passport processing at post, how about  the fact that 15 of the 19 hijackers who perpetrated the 9/11 attacks were from Saudi Arabia, Egypt, Lebanon, and the UAE?  Are U.S. embassies in those countries also revoking passports of Americans of local origins? The Times Square plot involved Faisal Shahzad, an American of Pakistani origin. Shoe bomber and self-proclaimed Al Qaeda member Richard Reid is a British citizen. If there is a new passport policy, is it universally applied to every country where there were terrorist plots hatched or where the attackers trained or originated?  (A side note — A couple of years ago, the UK stripped British citizenship from 16 individuals who had dual nationality because they were considered to pose a threat to the UK. In 2011, more than 50 Australians have had their passports revoked or refused to prevent them from going overseas for “terrorist training holidays).”

But — that does not seem to be the case here or we would have heard more about this. So what is it? Why Yemen in particular? And how come this appears to be happening only in the last year or so?

Fraud Overload?

In 2010, the State Department estimated the number of U.S. citizens in Yemen at  over 55,000. According to State/OIG, U.S. citizenship is highly valued in Yemen. “Fathers can receive up to $50,000 (45 times the per capita Gross Domestic Product) as a bride price for a U.S.-citizen daughter. As a result, parents often claim children as their own who are in fact from other families, in order to fraudulently document the children as U.S. citizens and use them as a potential source of income.”

A 2009 Fraud Summary floating around the net describes Yemen as having a “pervasive fraud environment.” At that time, the embassy estimated that two-thirds of  its immigrant visa cases (IV) were fraudulent and  that the embassy considered all cases fraudulent until proven otherwise.  Post also used DNA testing and bone age testing to ensure that only qualified children of U.S.citizens receive passport benefits.  So is the passport processing time, lengthly and complicated in Yemen exacerbated by fraud overload?

Muckrock.com, by the way, has filed an FOIA of the Fraud Summary for Sanaa last year and we’re still waiting for that to show up online.

Staffing Shortages?

The American Citizen Services Unit of an embassy handles among other things Emergency Services to U.S. Citizens Abroad, and Citizenship and Nationality cases.  Due to the more complicated nature of these cases, the unit is typically staff by a mid-level officer and local employees.  The unit, almost always, depending on the workload include one entry level officer who is typically on a 3-6 month job rotation in the ACS unit.  Another component of the consular operation is the Fraud Manager, who often times, is also a first or second tour officer, complemented by local staff and in some cases a Regional Security Officer-Investigator (RSO-I). At the time of the IG inspection, the Fraud Unit was staffed by two LE staff members, a part time ARSO-I, a part-time, first-tour vice consul, and no full-time Fraud Manager.

The State/OIG 2010 report on Yemen especially noted that “staffing shortages and backlogs increase the risk to U.S. homeland security caused by pervasive fraud and the threat of terrorism.” Subsequent to the inspection, we understand that the embassy hired an eligible family member as a Fraud Manager and also hired a local fraud analyst.  The situation in Yemen has progressively become more difficult in the last several years. Sana’a has been designated a 30% danger post since 2008.  In 2013, it became a 30% hardship post.  Under the circumstances, can you imagine the staffing shortages improving significantly?

Anyway, we don’t know exactly what’s going on here except that the “situation has been reviewed.” It is doubtful that the Bureau of Consular Affairs will provide some clarity on what’s going on with passport revocations in Yemen but we think it should.  It ought to also provide guidance on how to file an appeal in revocation cases.  Embassy Yemen does not provide any instruction online on this regard.  If limited staffing at post has exascerbated  the processing backlog, perhaps CA who has tons of consular funds should consider additional temporary staffing at a nearby post to help address the problem.

Maybe State’s ace in a hole is  Haig v. Agee, (1981) which upheld the right of the executive branch to revoke a citizen’s passport for reasons of national security and the foreign policy interests of the U.S. under the Passport Act of 1926.  But — if these revocation are only happening in Yemen, might not all this end up in court as individual lawsuits or as a potential class action depending on actual number of people impacted?  

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